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Pergamon

International ournalof Law and Psychiatry,Vol. 17, No. 1, pp. 99-l 17, 1994

Copyright0 1994

Elsevier Science Ltd

Printed in the USA. All rights reserved

0160-2527/94 6.00 + 330

The Right to Refuse Mental Health

Treatment:

A Therapeutic Jurisprudence Analysis

Bruce J Winick

Introduction

The controversy concerning the recognition and definition of a right to refuse

mental health treatment has largely ignored the question of whether such recog-

nition would be therapeutically beneficial or detrimental to the patient. Would

such recognition lead to refusal of needed treatment so that patients will rot

with their rights on, as some have suggested ? Will allowing offenders the

choice whether to participate in correctional rehabilitation programs increase

recidivism? Will patients forced to accept mental health treatment over objec-

tion improve and come, in time, to thank their doctor, retrospectively approv-

ing beneficial treatment they never would have accepted voluntarily?2 On the

*Professor of Law, University of Miami School of Law, Coral Gables, Florida, P.O. Box 248087,

33124-8087, U.S.A.

Preliminary versions of this article were presented at meetings of the International Academy of Law and

Mental Health and the American Psychology-Law Society, and I appreciate the comments of colleagues at

these meetings. I also appreciate the research assistance of Joyce Golden and Karen Kaminsky. This article,

in a somewhat revised form, will appear as a chapter in my forthcoming book,

THE

RIGHT TO REFUSE

MENTAL HEALTH TREATMENT:A CONSTITUTIONAL

ND

THERAPEUTIC URISPRUDENCENALYSIS.

See, e.g., Appelbaum & Gutheil,

The Boston State Hospital Case: I nvolun tary M ind Control, the

Constitu tion, and the Right to Rot, 137 AM. J. PSYCHIATRY 720 (1980); Gutheil, In Search of True

F reedom: Drug Refusal, I nvoluntary M edication, and Rotting with Your Rights On, 137AM. J. PSYCHIA-

TRY

327 (1980) (editorial).

See, e.g., A. STONE, MENTAL HEALTH LAW: A SYSTEM

IN TRANSITION 69-70 (1975)

(describing this

reaction as the thank-you theory); D. WEXLER, MENTAL HEALTH LAW 45-48 (1981) (analyzing the thank

you theory in context of narcotics abusers); Gove & Fain, A Compari son of Voluntary and Committed

Psychiatr ic Patients, 34 ARCH. GEN. PSYCHIATRY669, 675 (1977); Kane, Quitkin, Rifkin, Wegner, Rosen-

berg & Borenstein, Attitudinal Changes of Involuntar ily Committed Patients Following Treatment, 40

ARCH. GEN. PSYCHIATRY 374, 376 (1983); Schwartz, Vingiano & Beziganian-Perez, Autonomy and the

Right to Refuse Treatment: Patient s Atti tudes After I nvolun tary Medication, 39 HOSP. & COMMUNITY

PSYCHIATRY 1049 (1988) (empirical study showing that medication refusers treated over objection, if rehos-

pitalized, would assent to drug treatment); but see Beck Jr Golowka, A Study of Enfor ced Treatment in

Relation to Stone s Thank You Theory, 6

BEHAV. SCI. & L. 559, 565 (1988) (empirical study of involun-

tarily hospitalized patients showing no evidence to support thank you theory in 62 of cases).

99

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BRUCE J. WINICK

other hand, might recognition of a right to refuse treatment empower patients

and offenders in ways that could have therapeutic value? Might it provide

them with a context in which they could acquire decisionmaking skills, learn

to engage in self-determining behavior, and attain functional capacities that

will be useful in community adjustment? Will providing patients and offenders

with treatment choice enhance the potential that such treatment will be effica-

cious? Will according patients (or offenders) a right to refuse treatment change

the therapist-patient (or counselor-offender) relationship in ways that will

enhance or diminish its therapeutic potential?

These are questions that have not been examined empirically, but which are

critical to resolving the right to refuse treatment dilemma. Whether a right

to refuse treatment should be recognized ultimately may be a constitutional

question, but judicial and statutory definitions of its parameters and of the

procedural requirements necessary to implement it can be critically affected by

the answers to these empirical questions. Moreover, because constitutional

adjudication itself usually involves the balancing of conflicting interests, the

answers to these questions should provide data that is essential to a constitu-

tional analysis of the right to refuse treatment. This article accordingly at-

tempts a therapeutic jurisprudence analysis of the right to refuse treatment. It

examines principles of cognitive and social psychology and psychodynamic

theory in order to speculate about the likely impact of recognizing that patients

and offenders have a right to refuse treatment, and a corresponding opportu-

nity to choose such treatment. It is hoped that this theoretical speculation will

generate empirical investigation that, in turn, will aid in a more informed

development of the law in this area.

The Psychological Value of Choice

An extensive body of psychological literature points to the positive value of

allowing individuals to exercise choice concerning a wide variety of matters

affecting them.4 Patient choice in favor of treatment, for example, appears to

be an important determinant of treatment success. Treatment imposed over

objection may not work as well. Patients, like people generally, often do not

respond well when told what to do. This may be even more true of criminal

Therapeutic jurisprudence suggests the need for an assessment of the therapeutic impact of legal rules.

The law itself impacts upon therapeutic values-sometimes positively, but sometimes negatively. While

other considerations may properly shape legal rules, a sensible policy analysis of law should take into

account its consequences for the health and mental health of the individuals and institutions it affects.

Therapeutic jurisprudence accordingly calls for theoretical speculation about and empirical investigation of

the therapeutic or antitherapeutic effects of the law. See

generaily

D. WEXLER B. WINICK, ESSAYS IN

THERAPEUTIC JURISPRUDENCE (1991); Wexler & Winick,

Therapeutic Jurisprudence IS a New Approach to

Mental Health Law Policy Analysis and Research, 45

U. MIAMI L. REV. 979 (1991). In our prior writings,

David Wexler and I have suggested the need for a therapeutic jurisprudence assessment of the right to refuse

treatment. See WEXLER WINICK, supra at 303, 310-11; Wexler & Winick, supra at 990-92. This article

attempts such an analysis.

4See Winick,

On Autonomy: Legal and Psychological Perspectives, 31

VILL. L. REV. 1705, 1755-68

(1992) (summarizing literature on the psychology of choice).

5Winick, Competency to Consent to Treatment: The Distinction Between Assent and Objection, 28 HOUS.

L. REV. 15,46-53 (1991).

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THE RIGHT TO REFUSE MENTAL HEALTH TREATMENT

101

offenders, who have demonstrated their unwillingness or inability to behave in

accordance with societys rules. Unless people themselves see the merit in

achieving a particular goal, they often will not pursue it or will do so only

half-heartedly. Indeed, sometimes even when the costs of noncompliance with

a goal are high, some people may resent the pressure imposed by others and

refuse to comply. Sometimes they even may act perversely in ways calculated

to frustrate achievement of the goal. By contrast, an individual voluntarily

accepting treatment is exercising choice. The law strongly favors allowing indi-

vidual choice rather than attempting to achieve public or private goals through

compulsion.6 Aside from the political values reflected in this preference, it is

strongly supported by utilitarian considerations.

Cognitive and social psychology provide a theoretical explanation for why

permitting individual choice may have the effect of enhancing the potential

for success. People directed to perform tasks do not feel personally committed

to the goal or personally responsible for its fulfillment.8 This feeling may apply

even for tasks the individual is directed to perform in furtherance of his or her

own best interests, such as medical treatment. When physicians do not allow

patient participation in treatment decisions and do not explain treatment to

them, patients often fail to comply with medical advice.g Choice, on the other

hand, may bring a degree of commitment which mobilizes the self-evaluative

and self-reinforcing mechanisms that facilitate goal achievement. To the ex-

tent that a patients agreement to accept a course of treatment recommended

by a therapist constitutes an affirmative expression of choice by the patient in

favor of treatment, such choice itself may be therapeutic. Compliance with a

treatment plan is often indispensable to successful treatment. Unless patients

show up for scheduled appointments or take their prescribed medication, treat-

ment cannot succeed. This would seem especially true for treatments like psy-

6Winick, supra note 4, at 1707-55.

See S. BREHM & J. BREHM, PSYCHOLOGICAL REACTANCE: A THEORY OF FREEDOMAND CONTROL 301

(1981); Carroll, Consent to Mental Health Tr eatment: A Theoretical Analysis of Coerci on, F reedom, and

Control, 9 BEHAV. SCI. & L. 129, 137-38 (1991); Winick, Harnessing the Power of the Bet: Wagerin g with

the Government as a Means of Accomplishing Social and I ndivi dual Change, 45U. MIAMI L. REV. 737,

752-72 (1991) (hereinaf ter Wageri ng with the Government; Winick, supra note 5, at 46-53; Winick, Compe-

tency lo Consent to Voluntary H ospitali zation: A Therapeutic Jur isprudence Anal ysis of Zin ermon v.

Burch, 14 INT'L . L. & PSYCHIATRY 169, 192-99 (1991) (hereinafter Competency to Consent to Voluntary

Hospitalization).

A. BANDURA, SOCIAL FOUNDATIONS OF THOUGHT AND ACTION: A SOCIAL COGNITIVE THEORY 338,

363,368,468-69,470-71,475-76,478-79 (1986).

P. APPELBAUM, C. LIDZ & A. MEISEL, INFORMEDCONSENT: LEGAL THEORYAND CLINICAL PRACTICE

28 (1987);

D. MEICHENBAUM & D. TURK, FACILITATING TREATMENT ADHERENCE: A PRACTITIONERS

GUIDE-BOOK 20, 76-79 (1987); B. MOYER HEALING AND THE MIND 50 (1993); see Appelbaum & Gutheil

Dr ug Refu sal: A Study of Psychiatri c I npatients, 137AM. J. PSYCHIATRY 340, 341 (1980); Shultz, From

I nformed Consent to Patient Choice: A New Protected I nterest, 95YALE L. J. 219, 293 & n.323 (1985).

Treatment adherence in general increases when the patient is given choice and participation in the selec-

tion of treatment alternatives and goals. See MEICHENBAUM & TURK, supra at 157, 159, 175; Kanfer &

Gaelick,

Self-Management Methods, in

HELPING PEOPLE CHANGE 334-47 (F. Kanfer & A. Goldstein eds.

1986).

BANDURA, supra note 8, at 338, 363, 368, 468, 478-70; BREHM & BREHM, supra note 7, at 301;

MEICHENBAUM & TURK, supra note 9, at 156-57; Carroll, supra note 7, at 129, 137-38.

See generally MEICHENBAUM & TURK, supra note 9.

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BRUCE J. WINICK

chotherapy, correctional counseling, and other forms of verbal therapy,12 and

even for many forms of behavioral therapy.13

These techniques all are largely

dependant for their success on the conscious involvement and active coopera-

tion of the patient. However, patient involvement and cooperation would seem

essential for even organic forms of treatment.

The conscious, voluntary agreement to accept a course of treatment consti-

tutes the setting of a goal. The setting of explicit goals is itself a significant

factor in their accomplishment.4

This goal-setting effect is one of the most

robust . . . findings in the psychological literature. The conscious setting of

a goal is virtually indispensable to its achievement.16 A patients voluntary

agreement to a course of treatment recommended by a therapist constitutes

the setting of a goal, the acceptance of a prediction by the therapist that the

patient can achieve the goal and will do so, and at least an implicit undertaking

by the patient that he or she will attempt the task. The therapists prediction

that the proposed therapy will succeed and the patients acceptance of this

prediction set up expectancies that help to bring about a favorable treatment

outcome.

A patients expectancies concerning treatment success, as well as a number

of other cognitive mechanisms, seem to be significantly related to treatment

response. There is increasing recognition that the mind plays a crucial role in

both the patients susceptibility to a variety of medical conditions and his or

her response to treatment.

In its treatment of illness, medicine traditionally

has focused almost exclusively on treating the body, often neglecting the role

*See Council of the Am. Psychiatric Assn, Positi on Statement on the Question of Adequacy of Treat-

ment, 123 AM.

J.

PSYCHIATRY 1458, 1459 (1967) ([IIt may be said

in general that the effectiveness of the

psychotherapies is proportional to the degree of cooperation that is present

. . );

Katz, The Right to

Treatment-An Enchanting Legal Fi ction, 36U. CHI. L. REV. 755, 777 (1969); Michels, Ethical Issues of

Psychological and Psychotherapeuti c Means of Behavior Control : I s the Moral Contr act Being Observed?,

3 HASTINGS CENTER REP. 11, 11 (1973); Stromberg & Stone, A Model State Law on Civil Commitment of

the Mentally IN, 20

HARV. J. LEGIS. 276,328 (1983); Winick,

TheRight to Refu seMentalH ealth Treatment:

A F ir st Amendment Perspective, 44 U. MIAMI L. REV. 1, 83-84 (1989).

See E. ERWIN, BEHAVIOR THERAPY: SCIENTIFIC, PHILOSOPHICALAND MORAL FOUNDATIONS 180-81

(1978); MEICHENBAUM & TURK, supra note I, at 150; Bandura, Behavior Therapy and the Models of Man,

29 AM. PSYCHOLOGIST 859, 862 (1974); Marks, The Curr ent Status of Behavioral Psychotherapy: Theory

and Practice, 133 AM. J. PSYCHIATRY 253, 255 (1976); Winick, Legal Limitations on Correctional Therapy

and Research, 65 MINN. L. REV. 331, 360-61 (1981); Winick, supra note 12, at 80.

?Zampbell, The Ef fects of Goal-Contin gent Payment on the Performance of a Complex Task, 37PER-

SONNEL PSYCHOLOGY 23, 23 (1984); Huber, Comparison of Monetary Rein forcers and Goal Setting as

Learn ing I ncentives, 56 PSYCHOL. REP. 223 (1985); Kirschenbaum & Flanery, Toward a Psychology of

Behavioral Contracting, 4 CLINIC L PSYCHOL. REV. 598, 603-09 (1984);

Locke, Shaw, Saari & Latham,

Goal Setting and Task Performance 1969-1980, 90PSYCHOL. BULL. 125, 125-31 (1981); Terborg & Miller,

Motivation, Behavior, and Perf ormance: A Closer Exami nation of Goal Setting and Monetary I ncentives,

63

J.

APPLIED PSYCHOL. 29, 30-31 (1978).

Campbell, supra

note

14, at 23;

Locke, Shaw, Saari & Latham,

supra

note

14, at 145.

6B~~~~~,

supra

note 8, at 469 (Those who set no goals achieve no change

. . . . ).

See id. at 412-13, 467; Deci & Ryan, The Empiri cal Exploration of I ntrin sic Motivational Processes, 13

ADVANCES IN EXPER. Sot. PSYCHOLOGY 39,59 (1980).

See generally N. COUSINS, HEALTH FIRST: THE BIOLOGY OF HOPE AND THE HEALING POWER OF THE

HUMAN SPIRIT (1990); H. DIENSTFREY, WHERE THE MIND MEETS THE BODY: TYPE A, THE RELAXATION

RESPONSE, PSYCHONEUROIMMUNOLOGY,HYPNOSIS, BIOFEEDBACK, NEUROPEPTIDES, AND THE SEARCH

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THE RIGHT TO REFUSE MENTAL HEALTH TREATMENT

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of the mind. Even when fighting organic illnesses with organic treatment tech-

niques, the role of the mind may be significant in producing positive out-

comes.19

Expectancy theory helps to explain the therapeutic power of such

phenomena as the placebo effect, the Hawthorne effect, and the medicine

man. Although as yet imperfectly understood, these phenomena suggest the

existence of a powerful relationship between a patients expectations that he or

she will improve and his or her perceived and even actual improvement. An

increasing variety of medical and psychological conditions are treated with

hypnosis and positive imaging techniques that ask the patient to visualize his or

her body fighting illness and the ultimate restoration to health. The positive

attitudes and expectations thereby created are thought to allow the patient to

FOR IMAGERY, AND THE MINDS EFFECT ON PHYSICAL HEALTH (1991); H. DUNBAR, EMOTIONS ND

BODILY CHANGES (1954) (discussing psychosomatic medicine, a psychological approach to medicine treating

the mind and body as one entity); MOYERS,

supra

note 9; Engel,

The Need or a New Medical Model: A

Challenge or Biomedicine, 196 SCIENCE 129 (1977) (proposing a psychosocial view of health, taking into

account the interaction of biological, psychological, and social factors in the onset of physical disorders);

Frank,

The Faith that Heals, 137

JOHNS HOPKINS MED. J. 127 (1975) (observing that diverse modes of

medical treatment owe their success or failure to the patients state of mind and expectations, and not solely

to the treatment regimen itself).

See

COUSINS, supra

note 18, at 192 (commenting on the role of patients outlook and attitudes on the

onset and course of disease);

id.

([Tlhe wise physician makes a careful estimate of the patients will to live

and the ability to put to work all the resources of spirit that can be translated into beneficial biochemical

changes.); id. ([Flew things are more important than the psychological management of the patient in all

medical contexts.);

id.

at 217-20 (discussing survey of oncologists showing their belief that positive patient

attitude and participation in treatment were beneficial); MOYERS,

supra

note

9,

at 130 (commenting on the

role of lifestyle and attitudes on such conditions as cancer and heart disease).

*See, e.g., J. BOURKE, THE MEDICINE MEN OF THE APACHE 2 (1971) (observing that the ability to inspire

belief in patients that he has the gift is a prerequisite to being a diyi or medicine man); H.

BRODY,

PLACEBOS AND THE PHILOSOPHY OF MEDICINE: CLINICAL, CONCEPTUAL, AND ETHICAL ISSUES 18-20

(1980) ([T]he patients expectations of symptom change is held to be causually connected to the change that

occurs); M.

JOSPE, THE PLACEBO EFFECT

IN HEALING 93-108, 130 (1978) (analyzing the Hawthorne effect

in terms of expectancy theory); 0. SIMONTON, S. MATTHEWS-SIMONTON & J. CREIGHTON,

GE~ING WELL

AGAIN 22 (1978); Beecher, ThePowerfulPlacebo, 159 .A.M.A. 1602 (1955) (documenting the power of the

placebo); Evans, Expectancy, Therapeutic I nstructions, and the Placebo Response, in PLACEBO: THEORY,

RSEARCH, AND

MECHANISMS 215, 222-24 (1985) (concluding that the placebo response is mediated by

expectations generated within the context of the doctor-patient relationship); Frank, Bi ofeedback and the

P/acebo Effect, 7

BIOFEEDBACK & SELF-REGULATION 449 (1982) (examining placebo effect in terms of

expectancy theory); Horvath,

Placebos and Common Factors in two Decade of Psychotherapy Research,

104 PSYCHOL. BULL. 214, 215 (1988) (Expectancy factors have been shown to influence therapeutic out-

come); Wolf, Ef fects of Placebo Administration and Occurr ence of Toxic Reactions, 155 J.A.M.A. 339

(1974) (documenting beneficial effects of placebos). For an alternative analysis of the placebo effect in

terms of classical conditioning, see DIENSTFREY,

supra

note 18, at 86-87; Ader,

The Placebo Eff ect as

Conditioned Response, in EXPERIMENTAL FOUNDATIONS OF BEHAVIORAL MEDICINE: CONDITIONING AP-

PROACHES 47 (R. Ader, H. Weiner & A. Baum eds. 1988).

*See, e.g., P. BROWN, THE HYPNOTIC BRAIN: HYPNOTHERAPY AND

SOCIAL COMMUNICATION (1991);

G. EPSTEIN, HEALING VISUALIZATIONS: CREATING HEALTH THROUGH IMAGERY (1989); M. ERICKSON,

THE COLLECTED PAPERS OF MILTON H. ERICKSON ON HYPNOSIS (E. Ross ed. 1988); Barber, Changing

Unchangeable Bodil y Processes by (Hypnoti c) Suggestion: A New Look at Hypnosis, Cognition, Imagin -

ing, and the M ind-Body Problem, in

IMAGINATION

AND

HEALING

(A. Sheikh ed. 1984); Orne & Dinges,

Hypnosis, in 2 COMPREHENSIVETEXTBOOK OF PSYCHIATRY 1501, 151 l-12 (H. Kaplan & B. Sadock eds.

5th ed. 1989); Wilson & Barber, The Fantasy-Prone Personality: Implications for Understanding Imagery,

Hypnosk, and Parapsychological Phenomena, in IMAGERY: CURRENT THEORY, RESEARCH AND APPLICA-

TION340 (A. Sheikh & J. Wiley eds. 1983).

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BRUCE J. WINICK

mobilize his or her psychic resources in ways that may play a critical role in

the therapeutic process.22

How do these positive attitudes and expectancies work to influence treat-

ment success? Social cognitive theory posits that predictions and expectations

concerning the achievement of goals, including treatment goals, stimulate feel-

ings of self-efficacy in the individuals which in turn spark action and effort in

furtherance of the goa1.23

The setting of treatment goals serves to enhance

motivation and increase the patients effort through self-monitoring, self-

evaluation, and self-reactive processes.24

Setting such goals helps to structure

and guide the patients behavior over the often long course of treatment.2 It

provides direction for the patient and focuses his or her interest, attention,

and personal involvement in the treatment.26

A patients voluntary acceptance

of a therapists treatment recommendation may facilitate an internalization of

the treatment goal that can produce the personal commitment and expenditure

of energy needed to achieve it.27

Motivation to succeed is an ingredient in goal achievement. Ability to ac-

complish a goal, although necessary, will not produce success by itself; unless

individuals are motivated to succeed, they will not commit the effort needed

to bring about success. Psychologist Edward Decis distinction between intrin-

sic and extrinsic motivation helps to explain why choice works better than

compulsion. Intrinsic motivation involves self-determining behavior and is as-

sociated with an internal perceived locus of causality, feelings of self-deter-

mination, and a high degree of perceived competence or self-esteem.29 With

extrinsic motivation, on the other hand, the perceived locus of causality is

external and feelings of competence and self-esteem are diminished.30 When

people are allowed to be self-determining, they function more effectively, with

?See COUSINS, supra note 18, at 237-39 (discussing the psychic interplay and its effects on wound healing,

the course of progressive illnesses such as AIDS, and the functioning of the immune

system); DIENSTFREY,

supa note

18;

MOYERS, supa note 9, at 48; Dubos, I ntroduction, in N. COUSINS, ANATOMY OF AN ILLNESS

AS PERCEIVED BY THE PATIENT: REFLECTIONS ON HEALING AND REGENERATION 11, 18, 22-23 (1979);

Shultz, supra note 9, at 292-93.

See BANDURA, supra note 8, at 413. See also

Rotter,

Generali zed Expectancies for In ternal Versus

External Control of Rein forcement, 80 PSYCHOL. MONOGRAPHS 1 (1966) (behavior varies as a function of

the individuals generalized expectancies that outcomes are determined by his own actions or by external

sources beyond his control); Horvath, supru note 20, at 218 (The belief that the treatment works in the

manner outlined in the rationale motivates the client to perform the tasks of the therapy.).

24See

BANDURA, supra note 8, at

469-72;

MEICHENBAUM & TURK, supra note

9, at 158-61.

See BANDURA, supra note 8, at 469.

%ee id. at 472.

27CJ id. at 477-78 (observing that pledging goal commitments publicly, or to other people, enhances the

amount of personal effort expended in their pursuit).

28See E. DECI, INTRINSIC

MOTIVATION (1975) (hereinafter INTRINSICMOTIVATION) (reviewing studies

in

intrinsic motivation and discussing development of its interplay with extrinsic rewards and controls); E.

DECI, THE PSYCHOLOGY OF SELF-DETERMINATION (1980) [hereinafter THE PSYCHOLOGY OF SELF-

DETERMINATION]; Deci & Ryan, supra note

17,

at

41-43, 60-63, 67.

29D~~~, THE PSYCHOLOGY OF SELF-DETERMINATION,supra note 28, at 41.

Id.

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THE RIGHT TO REFUSE MENTAL HEALTH TREATMENT

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a higher degree of commitment and greater satisfaction.31 These feelings in-

crease motivation to succeed, stimulate positive expectations and attitudes,

and spark effort.32

The exercise of treatment choice also may trigger what Leon Festinger de-

scribed as cognitive dissonance- the tendency of individuals to reinterpret

information or experience that conflicts with their internally accepted or pub-

licly stated beliefs in order to avoid the unpleasant personal state that such

inconsistencies produce.33

Cognitive dissonance affects not only perception,

but behavior as well, producing effort in furtherance of the individuals stated

goal in order to avoid the dissonance that failure to achieve it would create.34

In the treatment context, cognitive dissonance can cause the patient to mobilize

his or her energies and resources in order to accomplish the treatment goal.

These motivating effects of cognitive dissonance will be even stronger to the

extent that the patients commitment to achievement of the goal is made to a

respected therapist or counselor or publicly communicated to others whose

respect the patient values.35

Thus, according to several strands of psychological theory, voluntary choice

of treatment, particularly if recommended by a trusted and respected therapist

or counselor, engages a number of important intrinsic sources of motivation

and creates the positive expectancies that help to bring about treatment suc-

cess.36 These intrinsic sources of motivation and positive expectancies are more

likely to be activated when the individual makes a choice that he or she regards

as voluntary. To the extent that a decision is externally imposed on the individ-

ual, or the individual perceives the choice to be coerced, motivation to succeed

predictably will be reduced. The positive expectancies and attitudes that appear

to be so significant to treatment response would seem likely to occur only to

the extent that a real contractarian relationship exists between therapist and

patient. The condition of voluntary choice is satisfied in most outpatient treat-

ment contexts, but perhaps rarely in traditional public mental hospitals, where

clinicians dictate treatment that is imposed whether or not the patient con-

Id. at 208-10. See also C. KIESLER, THE PSYCHOLOGY OF COMMITMENT: EXPERIMENTS LINKING

BEHAVIORTO BELIEF(16467 (1971) (finding most effective method for behavior therapists to obtain desired

results with patients was to give patients perception that they had freedom and control).

See BANDURA, supra note 8, at 390-449; DECI, THE PSYCHOLOGY OF SELF-DETERMINATION,supra

note 28, at 208-10; M. FRIEDMAN G. LACKEY, JR., THE PSYCHOLOGY OF HUMAN CONTROL: A GENERAL

THEORY OF PURPOSEFULBEHAVIOR 72-74 (1991) (noting that control leads to self-confidence, which in

turn leads to positive behavior); Deci & Ryan, supra note 17, at 41-42,60-61.

L. FESTINGER, A THEORY OF COGNITIVE DISSONANCE 2-3, 18-24, 73 (1957) [hereinafter COGNITIVE

DISSONANCE]; L. Festinger, CONFLICT, DECISION,

AND

DISSONANCE 43 (1964). For a review of empirical

studies on cognitive dissonance, see J. Brehm & A. Cohen, EXPLORATIONS

IN

COGNITIVE DISSONANCE

221-44 (1962).

4F~~~~~~~~, COGNITIVEDISSONANCE,supra note 33, at 19.

See BANDURA, supra note 8, at 477-78; MEICHENBAUM & TURK, supra note 9, at 170, 174; Winick,

Wagering with the Government, supra note 7, at 763-64.

ee supra notes 7-35 and accompanying text. See generally BANDURA, supra note 8, at 467, 471-72;

DECI, INTRINSICMOTIVATION,

supra

note

28;

DECI, THE PSYCHOLOGY OF SELF-DETERMINATION,

supra

note 28; Carroll, supra note 7, at 129, 137-38; Deci & Ryan, supru note 17, at 41-42, 60-63, 67.

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sents,37 or in prisons in which treatment is given involuntarily38 or is perceived

to be a condition of release. Some jurisdictions, however, recognize a right to

refuse treatment that is applicable in public mental health institutions and

prisons,39 and institutionalized individuals in these jurisdictions are able, at

least theoretically, to exercise treatment choice. To the extent that these juris-

dictions honor a right to refuse, the goal-setting effect, cognitive dissonance,

and other psychological mechanisms producing intrinsic motivation would be

possible. The ability of a patient or prisoner to internalize the goal would

seem to be enhanced to the extent he perceives his choice as voluntary, and

undermined to the extent he perceives it to be coerced. To the extent coercion

prevails in public hospitals and prisons, the therapeutic effects of choice dis-

cussed here would seem unlikely to be achieved.

This theoretical explanation of the therapeutic value of choice finds support

in empirical research in a variety of areas suggesting that allowing individuals

to exercise choice increases the likelihood of success. For instance, research

with children has demonstrated that involving them in treatment planning

and decisionmaking leads to greater compliance and increases the efficacy of

treatment.@ Similarly, allowing students to make choices about educational

programs causes them to work harder, faster, and [react] more positively to

the situation than when they [are] unable to make such choices. Anecdotal

reports and informed clinical speculation, supported by several empirical stud-

ies, suggest that medical and mental health treatment are more effective when

provided on a voluntary rather than involuntary basis.42 An extensive review

See

e g

. .>

Duutremont v. Br oadlawn Hosp., 827 F.2d 291, 298 (8th Cir. 1987) (hospitalized civil patients

may be involuntarily treated with psychotropic drugs against their will).

See, e.g., Washington v. Harper, 494 U.S. 210 (1990) (upholding involuntary administration of antipsy-

chotic medication to prisoner).

See, e.g., 2 M. PERLIN, MENTAL DISABILITY LAW: CIVIL AND CRIMINAL 80 5.01-69 (1989); Winick,

supra note 12; Winick, The Right to Refuse Psychotropic Medication: Curr ent State of the Law and Beyond,

in THE RIGHT TO REFUSEANTIPSYCHOTIC MEDICATION 7 (D. Rapoport & J. Parry eds. 1986).

See, e.g., Lewis, Decision Makin g Related to Health: When Could/Should Chil dren Act Responsibly?,

n CHILDRENS COMPETENCE TO CONSENT 75, 76-77, 78-79 (G. Melton, P. Koocher & M. Saks eds.

1983); Melton, Chil dren s Competence to Consent, A Problem n Low and Social Science, in CHILDRENS

COMPETENCE TO CONSENT, supra at 1, 11; Melton, Decision M akin g by Chil dren: Psychological Risks

and Benefi ts, in

CHILDRENS COMPETENCE TO CONSENT,

supra note

21, 30-31, 37; Melton,

Childrens

Parti cipation in Treatment Planni ng: Psychologi cal and Legal I ssues, 12PROF. PSYCHOL. 246, 250-51

(1981).

4Bringham, Some Ef fects of Choice on Academic Perf ormance, in CHOICE AND PERCEIVEDCONTROL

131, 140 (L. Perlmutter & R. Monty eds. 1979). See also Amabile & Gitomer, Childrens Artistic Creativity:

Ef fects of Choice in Tusk Materi als, 10 PERSONALITY & Sot. PSYCHOL. BULL. 209, 213 (1984) (restriction

of choice negatively affected creativity); Deci, Nezlek & Sheinman, Charucteri stics of the Rewarder and

I ntr insic Moti vation of the Rewardee, 40 J. PERSONALITY & Sot. PSYCHOL. 1, 9 (1981) (students in

autonomy-oriented classrooms shown to have higher intrinsic motivation and self-esteem than students in

control-oriented classrooms).

42See AM. PSYCHIATRIC ASSN TASK FORCE REPORT No. 34: CONSENT TO VOLUNTARY HOSPITALIZA-

TION 1 (1993) (voluntary hospitalization may lead to more favorable outcomes compared to involuntary

hospitalization); id. at 5 (The American Psychiatric Association strongly believes that it is preferable

whenever possible for patients to be able to initiate their own psychiatric treatment.); APPELBAUM, LIDZ &

MEISEL, supro note 7, at 28; S. BRAKEL, J. PARRY & B. WEINER, THE MENTALLY DISABLED AND THE

LAW 178, 181 n.34 (3d ed. 1985); BREHM & BREHM, supra note 7, at 301; MEICHENBAUM & TURK, supro

note 9, at 175; Appelebaum, Mirkin & Bateman, Empi ri cal Assessment of Competency to Consent to

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of the literature on psychotherapy and psychotropic medication, the two most

prevalent forms of treatment for those suffering from mental illness, found no

persuasive evidence that coercive application of these techniques to involun-

tarily committed patients was effective.43

While more research is needed before definitive conclusions can be reached

concerning the effectiveness of treatment applied coercively,M the available

evidence supports the conclusion that patient choice increases the likelihood

of treatment success and that coercion does not work as well. Choice seems to

increase positive outcomes in a variety of treatment contexts, although the

question of its impact on patients with psychosis has not been adequately

studied. For example, a patient in a florid state of schizophrenia, who is

disoriented and hallucinating, may not possess a sufficient degree of compe-

tence to make a meaningful choice in favor of treatment.45 How much under-

standing and volition are necessary to engage the psychological mechanisms

discussed earlier that can contribute to a positive treatment response? Will

choice by such a patient have the effect of producing the positive expectancies

Psychiatric Hospitalization, 183 AM. J. PSYCHIATRY 170, 1170 (1981); Carroll, supra note 7, at 129, 137-

38; Culver & Gert,

The Morality of Involuntary Hospitalization, in

THE LAW-MEDICINERELATION: A

PHILOSOPHICAL XPLORATION159, 171 (S. Spicker, J. Healy & T. Engelhardt eds. 1981); Freedberg &

Johnston, Effects of various Sources of Coercion on Outcome of Treatment of Alcoholism, 43 PSYCHOL.

REP. 1271, 1271, 1277 (1978); Nicholson, Correlates of Commitment Status in Psychiatric Patients, 100

PSYCHOL.BULL, 241, 243-44 (1986); Perlin & Sadoff,

Ethical Issues in the Representation of Individuals in

the Commitment Process, 45

LAW & CONTEMP. PROBS. 161, 190-91 (1982); Rogers & Webster,

Assessing

Treatability in Mentally Disordered Offenders, 13

LAW & HUM. BEHAV. 19, 20-21 (1989); Stein & Test,

Alternatives to Mental Hospital Treatment, 37

ARCH.

GEN.

PSYCHIATRY 92, 392-93 (1980); Stromberg &

Stone, supra note 12, at 327, 328; Ward, The Use of Legal Coercion in the Treatment of Alcoholism: A

Methodological Review, in

ALCOHOLISM: NTRODUCTION O THEORYANDTREATMENT 72 (D. Ward ed.

1980); Note,

Developments in the Law-Civil Commitment of the Mentally Ill, 87

HARV. L. REV. 1190,

1399 (1974). Seealso Washington v. Harper, 494U.S. 210,249 n.15 (1990) (The efficacy of forced drugging

is also marginal; involuntary patients have a poorer prognosis than cooperating patients.) (Stevens, J.,

dissenting); Rennie v. Klein, 462 F. Supp. 1131, 1144 (D. N.J. 1978) ([Tlhe testimony . . . indicated that

involuntary treatment is much less effective than the same treatment voluntarily received.).

43Durham & La Fond, A Search for the Missing Premise of Involuntary Therapeutic Commitment:

Effective Treatment of the Mentally II, 40 RUTGERS L. REV. 303, 351-56, 367-68 (1988) (hereinafter

Involuntary Therapeutic Commitment). See also Durham 8r La Fond, The Empirical Consequences and

Policy Zmplications of Broadening the Statutory Criteria for Civil Commitments, 3 YALE L. & POLICY

REV. 395 (1985) (analyzing adverse effects of a statutory broadening of civil commitment standards).

&See WEXLER & WINICK, supra note 3, at 248 n.lO1 (noting the scarcity and inadequacy of existing

studies and suggesting the need for more empirical research on the issue).

45SeeZinermon v. Burch, 494 U.S. 113 (1990) (patient with schizophrenia who was delusional and halluci-

nating and who expressed the view that the mental hospital he was entering was heaven held incompetent

to consent to voluntary hospitalization). This article does not analyze the concept of competency. For

analysis of competency in various legal contexts, see Winick, Competency to be Executed: A Therapeutic

Jurisprudence Perspective, 10 BEHAV. SCI. & L. 317 (1992) (competency to be executed); Winick, supra

note 5 (competency to consent to treatment); Winick, Competency to Consent to Voluntary Hospitalization,

supra note 7 (competency to consent to hospitalization); Winick, Incompetency to Stand Trial: An Assess-

ment of Costs and Benefits, and a Proposal for Reform, 39 RUTGERSL. REV. 243 (1987) (competency to

stand trial). Nor does this article examine the conditions under which an incompetent patients choice may

be overridden pursuant to the states

parens patriae

power. See Winick,

supra

note 4, at 1772-77. Recogni-

tion that patients have a constitutional right to refuse treatment does not, of course, mean that a patients

right is absolute. For analysis of when state interests may outweigh the patients asserted right to refuse

treatment, see Winick, supra note 13 (examining state interests in correctional rehabilitation); Winick, supra

note 39 (examining state interests in the civil context).

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BRUCE J. WINICK

and intrinsic motivation that seem to be related to favorable treatment out-

come? Theoretical explanations for the relationship between patient choice

and treatment success are based on studies with less impaired populations.

Can these findings be generalized to more impaired patients suffering from

at least severe cases of major mental illness? These questions remain largely

unexamined empirically.

Even if such patients do not possess competence to enable their choices to

trigger these positive psychological effects, however, allowing them as great a

degree of choice as circumstances permit may still be therapeutic. The aim of

treatment interventions for acutely psychotic patients is to ameliorate severe

symptomatology and restore the patient to as great a degree of competence as

is possible. After a brief period of medication, for example, most seriously

disturbed patients will be sufficiently competent that their choices about future

treatment presumably will have positive therapeutic value.

An additional therapeutic value of choice, especially for disabled and disad-

vantaged populations like mental patients and criminal offenders, is that hav-

ing and making choices is developmentally beneficial. Except for young chil-

dren, and sometimes even including them, the more choice we give individuals,

the more they will act as mature, self-determining adults. Indeed, a sense of

competency and self-determination provides strong intrinsic gratification and

may be a prerequisite for psychological health.46 Treating individuals as compe-

tent adults able to make choices rather than as incompetent subjects of our

paternalism, pity, or even contempt, predictably will have a therapeutic effect.

This may be especially true for mental patients, who too often are infantilized

by the treatment they receive from institutional clinicians and staff.47 But it

also may be true for prisoners, particularly those incarcerated for lengthy

periods, who develop a form of institutional dependency.48

The denial of choice- which occurs in a legal system that rejects a right

to refuse treatment -can be antitherapeutic, producing what in therapeutic

jurisprudence terminology is called law related psychological disfunction.49

Exercising self-determination is thought to be a basic human need. A variety

of studies show that allowing individuals to make choices is intrinsically moti-

vating, while denying choice undermines [their] motivation, learning, and

&Carroll, supra note 7, at 129, 137-38; Deci & Ryan, supra note 17, at 42, 61, 72-73.

4See

generally

E. GOFFMAN, ASYLUMS: ESSAYS ON THE

SOCI L

SITUATIONS OF MENTAL PATIENTS AND

OTHER INMATES

3-74(1962) (discussing the phenomena of institutional dependence); Devillis, Learned

Helplessness in Institutions, 15 MENTAL RETARDATION 10 (1977); Doherty, Labeling Effects in Psychiatric

Hospitalization: A Study of Diverging Patterns of Inpatient Self-labeling Process, 32 ARCH. GEN. PSYCHIA-

TRY 562 1975). See also Johnson v. Solomon, 484 F. Supp. 278, 308 (D. Md. 1979) (Inappropriate and

excessive hospitalization fosters deterioration, institutionalization, and possible regression.) (footnotes

omitted). In addition to breeding learned helplessness, see Devillis, supra; infra note 53 and accompanying

text, such total institutions condition passivity and helplessness by reinforcing it and by discouraging assert-

iveness and autonomous behavior.

48See GOFFMAN,

supra

note 47, 16-17, 25-31, 39, 53-55,61,68-70.

@See WEXLER 8~ WINICK,

supra

note

3,

at

313;

Wexler & Winick,

supra

note 3, at 979, 994.

~DEcI, THE PSYCHOLOGY OF SELF-DETERMINATION, supra note 28, AT 208-09 (discussing intrinsic

motivation as providing energy for various functions of will). See

a/so

H. HARTMANN, EGO PSYCHOLOGY

AND THE PROBLEM OF ADAPTATION (1958) (independent ego energy); White, Motivation Reconsidered:

The Concept of Competence, 66 PSYCHOL. REV. 297 (1959) (effectance motivation).

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THE RIGHT TO REFUSE MENTAL HEALTH TREATMENT

109

general sense of organismic well-being.

Indeed, the stress of losing the op-

portunity to be self-determining may cause severe somatic malfunctions and

even death.52 When people feel they have no influence over matters that vitally

affect them, they may also develop what Martin Seligman called learned

helplessness. Seligmans experimental work with animals and human subjects

led him to posit that repetitive events outside an individuals control may

produce a generalized feeling of ineffectiveness that debilitates performance

and undermines motivation and perceptions of competence.53 Institutionalized

individuals coerced into accepting treatment might come to view themselves as

incompetent in ways that could perpetuate and perhaps even worsen their

mental health and social problems. This loss of control may produce depres-

sion54 and decrease motivation. Moreover, it may set up expectancies of fail-

ure in the individual that may undermine commitment and diminish subsequent

performance.56

Denying people a sense of control over important areas of their lives thus

can have strongly negative consequences. By contrast, when individuals exer-

cise control and make choices, they experience increased opportunities to build

skills necessary for successful living. As a result, they may gradually acquire

feelings of self-efficacy, which in turn become important determinants of moti-

vation and performance.57 Hopefully, if given meaningful choices, these indi-

viduals will come to view themselves as in control of their lives, rather than as

mere passive victims of forces they can neither understand nor control-a

feeling that undoubtedly contributes to the existence and continuation of a

variety of social and health problems. Treating individuals as competent adults

able to make choices and to exercise a degree of control over their lives rather

than as incompetent subjects of governmental paternalism and control predict-

ably will have a beneficial effect.

Having a role in making important decisions, such as those involving treat-

ment, can only increase patient satisfaction and confidence in the treatment

process,58

which inevitably increases patient compliance and motivation to suc-

DECI, THE PSYCHOLOGY OF SELF-DETERMINATION,supru note 28, at 209 (discussing studies).

=Id.

M. SELIGMAN, HELPLESSNESS: ON DEPRESSION, DEVELOPMENT,AND DEATH (1975); HUMAN HELP.

LESSNESS:THEORY AND APPLICATIONS (J. Garber & M. Seligman eds. 1980); Maier & Seligman,

Learned

Helplessness: Theory ond Evidence, 105 J. EXPERIMENTAL PSYCHOL. 33 (1976); Overmier & Seligman,

Ef fects of I nescapable Shock Upon Subsequent Escape and Avoidance Responding, 63J. COMP. & PHYSIO-

LOGICAL PSYCHOL. 28 (1976). Seligman, Learned Helplessness, 23 ANN. REV. MED. 407 (1972). See also

BREHM & BREHM, supra note 7, at 378 (1981); LENORE WALKER, THE BATTERED WOMAN 42-54 (1979)

(applying learned helplessness to the battered woman syndrome); Peterson & Bossio, Learned Helplessness,

in SELF-DEFEATING BEHAVIORS: EXPERIMENTAL RESEARCH, CLINICAL IMPRESSIONS,AND PRACTICAL

IMPLICATIONS235 (C. Peterson & Bossio eds. 1989); Thornton & Jacobs, Learn ed Helplessness in Human

Subjects, 87 J. EXPERIMENTALPSYCHOL. 367 (1971).

54SeeFRIEDMAN & LACKEY, supro note 32, at 73; Peterson & L. Bossio, supro note 53, at 26.

55See

Deci, Nezlek & Sheinman, supru

note

41;

Deci & Ryan,

supru note 17, at 59.

56SeeFRIEDMAN& LACKEY, supra note 32, at 73.

See BANDURA, supru note 8, at 390-449; BREHM & BREHM, supra note 7, at 301, 376; Carroll, supro

note 7, at 129, 137-38; Deci & Ryan, supru note 17, at 41-42,60-61.

Wexler, Doctor-Putient Dial ogue: A Second Opini on on Talk Therapy through Law, 90YALE L. J.

458, 469 (1980) (book review).

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BRUCE J. WINICK

teed. Particularly for institutionalized individuals who have developed a form

of institutional dependency or learned helplessness, experiencing a measure of

control over important decisions can itself be therapeutic. This conclusion is

supported by research on nursing home residents, which demonstrated that

providing them increased choices and responsibilities produced improvement

in their conditions.59 Exercising choice and experiencing a sense of control over

important events in their lives can be a tonic for institutionalized mental pa-

tients and prisoners.

Thus, the potential for successful treatment in many contexts would appear

to increase when the individual chooses treatment voluntarily rather than

through coercion.60

Individuals coerced to participate in a treatment pro-

gram-for example, by court order; as a condition of diversion, probation, or

parole; by correctional authorities; or by authorities in psychiatric settings-

often just go through the motions, satisfying the formal requirements of the

program without deriving any real benefits.6 Indeed,such coercion may back-

fire, producing a negative p

sychological reactance that sets up oppositional

behavior leading to failure. Coercion may also trigger a form of the overjus-

tification effect, in which the individual may accomplish a specified goal, but

because he or she attributes his or her performance to external pressure, will

not experience any lasting attitudinal or behavioral change.63 In contrast, the

voluntary choice of a course of treatment involves a degree of internalized

commitment to the goal often not present when the course of treatment is

imposed involuntarily.bl

Voluntary treatment therefore seems more likely to be efficacious than treat-

ment that is coerced. These psychological perspectives on the value of choice

in the therapeutic context, and on the corresponding disutility of coercion,

may help to explain why treatment in the typical public mental hospita16 and

correctional rehabilitation in the typical prisona often have been ineffective.

These psychological insights suggest that the therapist-patient (or counselor-

Langer & Rodin,

The Ef fects of Choice and Enhanced Personal Responsibili ty for the Aged: A F ield

Experiment in an I nstitutional Setting, 34PERSONALITY SOC. PSYCHOL. 191 (1976).

ee

APPELBAUM, LIDZ MEISEL,

supra

note

9, at 28; N.

MORRIS, THE FUTURE OF IMPRISONMENT 24

(1974); Carroll,

supra note 7, at 137-38; Deci & Ryan, supra

note

17, at 59, 61; Winick, supra note 13, at

353, 360, 422; Winick, supra

note 5,

at 46-53;

Winick, supra note 7, at 192-99; Winick, Restructuring

Competency to Stand Tri al, 32

UCLA L. REV. 921, 980 (1985).

6See COMMITTEE ON PSYCHIATRY AND LAW OF THE GROUP FOR THE ADVANCEMENT OF PSYCHIATRY,

PSYCHIATRY AND SEX PSYCHOPATH LEGISLATION: THE 30s TO THE 80s 889 (1977); AMERICAN FRIENDS

SERVICE COMM., STRUGGLE FOR JUSTICE: A REPORT ON CRIME AND PUNISHMENT IN AMERICA 97-98

(1971); Winick,

supra

note 13, at 344-46; Winick,

supra

note 12, at 83-87.

62See J. BREHM, A THEORY OF PSYCHOLOGICAL REACTANCE (1966); BREHM BREHM,

supra

note

7,

at

300-01.

63See R. PETTY J. CACIOPPO, ATTITUDE AND PERSUASION: CLASSIC AND CONTEMPORARY AP-

PROACHES 169-70 (1981); Carroll,

supra

note

7,

at 129, 137-38; Deci,

Ef fects of Externally Mediated

Rewards on I ntr insicMotivation, 18 J. PERSONALITYJKSOC. PSYCHOL. 105 (1971).

See

supra

notes 7-10 and accompanying text; Carroll,

supra

note

7, at

129, 137-38; Deci & Ryan,

supra

note 17, at 59, 61.

65See, e.g., Durham & LaFond, I nvolun tary Therapeutic Commitment, supra note 43.

See, e.g., D. LIPTON, R. MARTINSON J. WILKS, THE EFFECTIVENESS OF CORRECTIONAL TREATMENT

(1975); PANEL ON RESEARCH ON REHABILITATIVE TECHNIQUES OF THE NATIONAL RESEARCH COUNCIL,

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THE RIGHT TO REFUSE MENTAL HEALTH TREATMENT 111

offender) relationship in the typical institution-in which treatment (or correc-

tional rehabilitation) is imposed coercively, or on a basis not perceived by the

patient (or offender) as truly voluntary-may frustrate rather than facilitate

achievement of the therapeutic goal.

Enhancing the Therapeutic Relationship

These psychological perspectives also suggest that according patients and

offenders a right to refuse treatment might have the salutary effect of restruc-

turing the therapist-patient (and counselor-offender) relationship in ways that

will enhance its therapeutic potential. There is increasing recognition that in

psychotherapy, the therapist-patient relationship itself plays an essential role

in producing positive outcomes.67 The effectiveness of psychotherapy is heavily

dependent on the quality of the therapeutic relationship. The most effective

therapeutic relationships are those in which mutual trust and acceptance are

established and maintained and in which the patient perceives that the therapist

cares about and is committed to pursuing his interests.68 Patients improve as a

result of therapeutic relationships that generate the perception that the thera-

pist is interested in and dedicated to the patients well-being.69 To succeed, the

therapist must establish his or her credibility and trustworthiness at an early

time in the relationship. A relationship in which the therapist is permitted to

treat the patient as an object of paternalism whose participation in the thera-

peutic decisionmaking process is unnecessary and undesirable will not inspire

such trust and confidence, and therefore may be counterproductive. Indeed,

a relationship in which the therapist ignores the patients expressed wishes

concerning treatment may produce the perception that the therapist is more

concerned with the welfare of the institution than with that of the patient, and

is not truly committed to the patients best interests. A paternalistic approach

that ignores the patients wishes and concerns is likely to be perceived as offen-

sive by the patient and an affront to his or her dignity and personhood.

THE REHABILITATIONOF CRIMINALOFFENDERS: PROBLEMSAND PROSPECTS5 (L. Sechrest, S. White E.

Brown eds. 1979).

67E.g., BREHM BREHM,

supra

note 7, at 151-55, 300-01; WEXLER WINICK,

supra

note 3, at 173;

Deci Ryan, supro note 17, at 70; Lambert, Shapiro 8~ Bergin, The Effectiveness of Psychotherapy, in

HANDBOOKOF PSYCHOTHERAPYAND BEHAVIORCHANGE 157-211 (S. Garfield A. Bergin eds., 3d ed.

1986) (hereinafter HANDBOOK).

See authorities cited in supra note 67. The therapist-patient relationship, although especially significant

in the context of psychotherapy, is also important in all areas of medical practice. See, e.g., COUSINS,supra

note 18, at 18 (discussing confidence by the patient in the doctor and in the patients own healing resources);

MOYERS, supra note 9, at 50 (discussing a prevention partnership in which a patient is empowered to be a

partner with . .

.

[the doctor] in the healing process.); Appelbaum Gutheil, supra note 9, at 341 (noting

correlation between adherence to drug treatment by psychiatric inpatients and the quality of the doctor-

patient relationship).

69B~~~ BREHM, supra note 7, at 151-52, 300-02; WEXLER WINICK, supra note 3, at 173; Beutler,

Crago Arizmendi,

Therapist Variables in Psychotherapy Process and Outcome, in

HANDBOOK,

supra

note 67, at 280-81; Orlinsky Howard, Process and Outcome in Psychotherapy, in HANDBOOK,supra

note67,at311.

See J. FEINBERG, HARM TO SELF 4-5, 23, 27 (1986); Goldstein, For Harold Lasswell: Some Reflections

on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 691 (1975);

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112 BRUCE J. WINICK

Rather than producing trust and confidence, such an approach can inspire

resentment and resistance.

Therapists, particularly those in public institutions, too often seem to mis-

perceive the importance of the therapist-patient relationship. Not only do these

therapists thereby forego therapeutic opportunities, but by their actions they

may actually create a harmful division between therapist and patient. Too

often there is no real connection or sense of community between therapist and

patient. As a result, no real sense of trust and confidence develops on the part

of the patient. Yet such trust and confidence may be a prerequisite for engaging

those positive attitudes and expectancies that play an important role in produc-

ing a successful treatment response. There are therapists who could learn much

from the teachings of theologian Martin Buber, whose writings explore the

nature of relationships based on mutual dialogue.7 Bubers notion of an I-

Thou relationship characterized by mutual respect, openness, and affirmation

of the other can be a useful model for restructuring the therapist-patient

relationship. This model can transform the therapeutic relationship from one

of paternalistic monologue to one of true dialogue, thereby increasing its thera-

peutic potential.

Recognition of a right to refuse treatment can reshape the therapist-patient

relationship into a tool that is both more humane and more effective. It will

increase the likelihood that therapists will respect the dignity and autonomy of

their patients, and recognize their essential role in the therapeutic process. This

reshaping of the therapists role can increase the potential for a true therapeutic

alliance in which therapists treat their patients as persons.72 The result can be

more patient trust, confidence, and participation in decisionmaking in ways

that can cause patients to internalize treatment goals. A therapeutic relation-

ship restructured in this fashion can enhance the patients intrinsic motivation

and the likelihood that the goal-setting effect, commitment, and the reinforc-

ing effects of cognitive dissonance will occur.

A real therapist-patient (or counselor-offender) dialogue concerning treat-

ment planning and decisionmaking can only bolster the patients faith in the

therapist and in his or her dedication to the patients best interests. This faith

and the expectations it generates may be essential to producing the Hawthorne

effect or other interactive mechanisms that can increase the likelihood of thera-

peutic success.73 Without trust, the therapeutic opportunities provided by the

therapist-patient relationship are drastically reduced.

The need for trust, cooperation, and open communication is particularly

important in the context or psychotherapy and other forms of verbal counsel-

Meisel & Roth, Toward an I nf ormed Discussion of I nformed Consent: A Review and Cri tique of the

Empirical Studies, 25

ARIZ

L. REV. 265, 284 (1983); Winick, supra note 5, at 17.

See M. BUBER, I AND THOU (1937); M. BUBER, BETWEEN MAN AND MAN (1947). For a proposal calling

for the restructuring of the attorney-client relationship in the poverty law context that builds upon Bubers

work, see Alfieri,

The Anti nomies of Poverty Law and a Theory of Di alogical Empowerment, 16

N.Y.U.

REV. L. & Sot. CHANGE 659 (1987-88).

*See P. RAMSEY, THE

PATIENT

S

PERSON: EXPLORATIONS IN MEDICAL ETHICS (1970).

See JOSPE, supra note 20, at 93-108, 130; text accompanying supra note 20.

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THE RIGHT TO REFUSE MENTAL HEALTH TREATMENT 113

ing, which are totally dependent on willing patient communication in the thera-

peutic relationship. What Freud characterized as the fundamental rule of

psychotherapy requires the patient to communicate openly and candidly with

the therapist.74 Such basic techniques for probing the patients unconcious

as free association and interpretation of dreams necessitate a patient who is

forthcoming with the therapist. Patient cooperation, necessary for these verbal

techniques to have any chance of succeeding, assume a high degree of patient

trust in the therapist and a relationship that is basically contractarian rather

than coercive in nature.

The ability of the therapist successfully to manipulate the transference phe-

nomenon is similarly dependent upon a high degree of patient trust in the

therapist. Transference is the process by which the patients feelings, thoughts,

and wishes concerning certain important figures in his or her life (particularly

in early life) are transferred or displaced to the therapist. This process is an

essential device by which the therapist helps the patient to understand his or

her emotional problems and their origins. Transference is a key element in the

therapist-patient alliance.76 Indeed, it has been characterized as unequivocally

the heart of psychoanalysis.

Freud himself strongly stressed the role of trans-

ference as an ally of the analyst and the motivating force in treatment.78 Ac-

cording to Freud, a positive transference provides the strongest motive for

the patients taking a share in the joint work of analysis.79 Transference thus

is both a crucial therapeutic tool and a motivating force for committing the

patient to the therapeutic alliance. It is the unconscious affective bond that

forms the basis for analytic work and underlies the patients desire to remain

in treatment . . . . O

For transference to play this essential role in the therapeutic relationship,

the therapist must gain the patients trust and inspire confidence and respect.

A basic sense of trust is a prerequisite to the optimal functioning of the work-

ing alliance. Patients often require an awareness of the person and personality

of the analyst as someone appropriately interested, caring, warm, and wishing

to be helpful at the beginning of treatment in order to establish the self-object

transferences that stabilize the treatment and make optimal therapeutic work

S. FREUD, AN OUTLINE

OF PSYCHOANALYSIS, in 23 STANDARD EDITION OF THE COMPLETE PSYCHO-

LOGICALWORKS OF SIGMUND FREUD 141 (1964).

See, e.g.,

AM. PSYCHIATRIC

ASSN, A PSYCHIATRICGLOSSARY 106 (6th ed. 1988) (hereinafter A PSYCHI-

ATRIC GLOSSARY); Adler, Transference, Real Relationship and Al li ance, 61

INT'L

. PSYCHO-ANAL. 541,

547 (1980); Greenson, The Working Al li ance and the Transference Neurosis, 34 PSYCHOANAL. Q. 155

(1965); Karasu, Psychoanalysis and Psychoanalyti c Psychotherapy, in 2 COMPREHENSIVETEXTBOOK OF

PSYCHIATRY 1442, 1446-47 (H. Kaplan&B. Sadock eds., 5th ed. 1989).

?See A PSYCHIATRIC GLOSSARY, supra note 75, at 106; Adler, supra note 75, at 548 ([Tlransference

and alliance seem inextricably intermeshed.).

Karasu, supra note 75, at 1446.

See Adler,

supra

note

75,

at

548;

Friedman,

The Therapeutic Al li ance, 50

INTL J. PSYCHOANAL. 139

(1969).

?S. FREUD, ANALYSIS TERMINABLE

AND

INTERMINABLE, n 23 THE COLLECTED WORKS OF SIGMUND

FREUD 233 (1937), cited n Adler, supra note 75, at 548.

arasu, supra note 75, at 1446.

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BRUCE J. WINICK

possible. Indeed, [n]o analysis can proceed without the functioning of a

rational, trusting therapeutic alliance.82

There is increasing recognition that the key to successful psychotherapy is

the therapeutic alliance itself. The classical analytic concept of the psychother-

apist-patient relationship envisioned the therapist as a neutral screen for the

patients transferential projections. But this concept has more recently been

broadened to focus attention on the therapeutic value of the relationship itself.

This broadening is often discussed as the real relationship.83 It represents

more than a mere acknowledgement of the therapists humanness, but also a

recognition that what is transformative or curative in the therapeutic process

is the actual, caring, human relationship between therapist and patient.84 Thus,

the therapeutic relationship itself is a therapeutic agent. To reach its therapeu-

tic potential, the therapist must establish an environment of safety and trust.85

A voluntary relationship in which the patient sees the therapist as his or her

agent, assisting him or her to accomplish goals that the two of them define,

rather than as a paternalistic director of the process, is more likely to create

the atmosphere of trust and openness that is necessary for the therapeutic

relationship to bring about healing and change.

A legal system in which the therapist needs the informed consent of the

patient is thus more conducive to allowing the relationship itself to realize

its potential as a therapeutic agent. An informed consent requirement, by

encouraging a therapist-patient dialogue, can create a significant therapeutic

opportunity. Discussion and negotiation about a patients objections to treat-

ment can provide an important context for probing conscious and unconscious

resistance, for fostering a positive transference, and for earning the patients

trust and confidence.

A therapeutic relationship characterized by voluntariness rather than coer-

cion is particularly important in the institutional contexts- hospital and

Adler, supra note 75, at 553. See also Viederman, The Real Person of the Analyst and his Role in the

Process of Psychoanalyti c Cure, 39 J.

AM. PSYCHOANALYTIC

ASSN 451, 457-58 (1991) (need for first phase

of analysis to offer an environment of safety and trust in the therapist-patient relationship in order for

the therapeutic potential of transference to be achieved). For a parallel perspective drawn from cognitive

psychology, see

BREHM & BREHM,

supra note 7, at 151-53, 300-01; Deci & Ryan, supra note 17, at 70.

Karasu, supra note 75, at 1449.

See, e.g., Adler, supra note 75.

84Personal communication from Daniel C. Silverman, M.D., Associate Psychiatrist In Chief, Beth Israel

Hospital, Boston, Massachusetts, and Assistant Professor of Psychiatry, Harvard Medical School, Cam-

bridge, Massachusetts, June 3, 1991. See, e.g., Aaron, The Patient s E xperience of the Anal yst s Subjectivity,

I PSYCHOANALYTIC DIALOGUE 29,

33 (1991) (The relational approach that I am advocating views the

patient-analyst relationship as continually established and re-established through ongoing mutual influences

in which both patient and analyst systematically affect, and are affected by, each other. A communication

process is established between patient and analyst in which influence flows in both directions.); id. at 41

(analysis viewed as co-participation);

id.

at 43 (analysis viewed as mutual, with both patient and analyst

functioning as subject and object, as co-participants); Adler, supra note 75 at 552-54; Binstock, The

Therapeutic Relationship, 21 J.

AM. PSYCHOANALYTIC

ASSN 543 (1973); Hoffman, Discussion: Toward a

Social-Constructi vist View of the Psychoanalytic Situation, 1

PSYCHOANALYTIC DIALOGUE 74,

5 (1991)

(a

real personal relationship and a mutual exploration of each ones perception of the analytical relationship

creates the opportunity for a special kind of affective contact with the analyst that is thought to have

therapeutic potential).

*jKarasu, supra note 75, at 1449; Viederman, supra note 8 1, at 548.

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prison-in which the right to refuse treatment question most often arises. It is

in these contexts that distrust of the therapist and concern about his conflicting

allegiance to his institutional employer is at its highest. For therapy to be

successful, the therapist or counselor must distance himself from the institu-

tions security and management staff and functions. The institutional resident,

accustomed to being treated as an object -as a means to the accomplishment

of institutional ends-will naturally be suspicious and distrustful of therapists

who treat him on a coercive basis. Providing therapy or counseling on a truly

voluntary basis will provide a sharp contrast to the way the individual is treated

by other institutional staff and can establish a climate that may allow the

patient or offender to view his therapist as an ally. It can break down distrust

and inspire confidence in and commitment to the therapeutic relationship,

which can emerge as an oasis in the desert of institutional life.

These considerations favoring a therapeutic relationship based on voluntari-

ness obviously have special force in the context of verbal psychotherapy or

counseling. They also seem applicable, however, in the context of behavior

therapy, many of the techniques of which, in order to succeed, require patient

cooperation and involvement as well as trust and confidence in the therapist.86

Moreover, although to a considerably lesser extent, these considerations may

apply as well even in the context of the organic treatment techniques. Choosing

the appropriate medication, for example, and maximizing the potential that it

will be used appropriately, will often require communication with the patient

and a high degree of cooperation.*

In all types of medical decisionmaking, allowing the patient to exercise

choice inevitably enriches and improves the quality of the decisionmaking

process.**

Successful treatment planning and implementation require a thor-

ough analysis of the patients problems, of the social context that often perpet-

uates them, and of the patients strengths and weaknesses. Patient trust, coop-

eration, and full and open communication are essential if the therapist is to

obtain this information from the patient, who frequently is the best, if not the

?See supra note 13 and accompanying text.

See Appelbaum & Gutheil,

supra

note 9, at 341. In addition, many of the organic treatment techniques,

like psychotropic drugs, are not administered in isolation, but are part of an integrated treatment plan that

involves verbal psychotherapy or counseling. In the case of schizophrenia or severe depression, for example,

medication is needed to control symptoms that would prevent the patient from accepting other forms of

therapy. Antipsychotic drugs that minimize the visual or auditory hallucinations or agitation that often

characterize schizophrenia, and antidepressant drugs that control the severe withdrawal and feelings of

worthlessness and profound sadness that often characterize major affective depression, are necessary to

render the patient accessible to verbal, social, and occupational therapy approaches. Even if such medication

would be effective in reducing severe symptomatology when administered coercively, the verbal therapy

that should follow the reduction in symptoms would seem to be more effective to the extent that the

individual chooses it voluntarily.

*See J. KATZ, THE SILENT WORLD OF DOCTOR

AND

PATIENT 102-03 (1984) (analyzing the informed

consent doctrine as furthering the doctor-patient relationship); COUSINS,

supra

note

22,

at 55 ([Flu11

communication between the patient and physician is indispensable not just in arriving at an accurate di-

agnosis but in devising an effective strategy for treatment.); Altman, Health Offi cial Urges FOCUS by

Doctors on Cari ngbs well as Cur ing: A More Active Role for Patients is Recommended, N.Y. TIMES, 1,

at 6, col. 3 (Aug. 15, 1993) (Doctors need to consider their patients as knowledgeable allies, not as pas-

sive recipients of care, and involve them fully in the entire care process, including decision-making about

treatment . . . . ) (quoting Michael H. Merson, M.D., World Health Organization official).

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BRUCE J. WINICK

only, source. Moreover, the aphorism two heads are better than one is espe-

cially apt in this context. Higher quality treatment decisionmaking is more

likely when the therapist-patient dialogue, kept open by allowing the patient a

legal right to participate in decisionmaking, produces the decision rather than

the therapist making it unilaterally. Treatment decisionmaking often involves

difficult value choices. How risks and benefits of alternative courses of treat-

ment are weighed depends on the incentive preferences of the individual. The

therapist will not always share the patients values and preferences. Moreover,

when the therapist is not the patients long-term physician-as in mental insti-

tutions and prisons-he or she will be unaware of their absent dialogue. The

doctor may know best about the clinical aspects of risks and benefits of

alternative treatments.89 However, the doctor cannot possess knowledge supe-

rior to that of the patient concerning the patients preferences. Dialogue, al-

though it may cost more in terms of therapist time, produces treatment deci-

sionmaking that is more accurate and thus more likely to be efficacious. In

addition, the patient is more likely to accept and comply with treatment when

the decision is a product of a process in which he or she has participated.W

Conclusion

For all kinds of medical and psychological treatment there would seem to

be strong therapeutic value in having a meaningful dialogic process between

therapist and patient resulting in mutual decision-making. Such a process will

enhance communication in the therapeutic relationship and increase the quality

of clinical decisionmaking. It will also foster patient trust and confidence in

the therapist, facilitating positive patient attitudes and expectancies that can

play an important role in treatment success.

In a legal system that allows the therapist to make medical decisions unilater-

ally without patient participation and consent, a dialogic process would largely

be unnecessary and would frequently be dispensed with. Recognizing a right

to refuse treatment will foster the possibility of a meaningful dialogic process,

thereby enhancing the potential that the therapist-patient relationship itself

will serve as a therapeutic agent. Moreover, in a legal system that denies pa-

tients a right to refuse treatment, patients will be deprived of the opportunity

to make treatment choices for themselves, and of the therapeutic advantages

that seem to be associated with choice. A patient deprived of the right to

choose against a particular treatment cannot exercise the kind of choice in

favor of it that will engage the positive expectancies and intrinsic motivation

that can be so important to a successful treatment response.

The right to refuse treatment, rather than frustrating treatment, may thus

actually advance the goal of successful therapy and rehabilitation. Instead of

viewing the right to refuse treatment with suspicion and patients who refuse

treatment with contempt, therapists should understand the right to refuse as

providing an important therapeutic opportunity. Indeed, a right to refuse treat-

ment may be an indispensable condition to a meaningful therapeutic alliance.

*But see KATZ, supra note 88, at 166-69 (discussing the uncertainty inherent in medical science).

?See KATZ, supra note 88, at 103;

MEICHENBAUM & TURK, suptw

note 9, at 63,71-16, 84-85.

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THE RIGHT TO REFUSE MENTAL HEALTH TREATMENT 117

This theoretical analysis of the likely impact of recognizing a right to refuse

treatment -and a corresponding opportunity of patients and offenders to

choose it -strongly suggests that therapeutic values will be furthered by the

reshaping of the therapist-patient relationship that will result from recognition

of the right. Although empirical work is needed to test these assumptions and

their applicability to seriously impaired patients, psychological and psychody-

namic theory would seem to provide significant support for the recognition of

a right to refuse treatment and for its effective implementation.